Contested water rights in post-apartheid South Africa:

The struggle for water at catchment level

JS Kemerink1*, R Ahlers1 and P van der Zaag1,2

1
UNESCO-IHE Institute for Water Education, PO Box 3015, 2601 DA Delft, The Netherlands
2
Water Resources Section, Delft University of Technology, PO Box 5048, 2600 GA Delft, The Netherlands

Abstract

The National Water Act (1998) of South Africa provides strong tools to redress inequities inherited from the past. However, a
decade after the introduction of the Act, access to water is still skewed along racial lines. This paper analyses the various ways
in which the Water Act is contested, based on empirical data detailing the interactions between smallholder farmers and com-
mercial farmers in a case-study catchment in KwaZulu-Natal Province.
The paper argues that the legacy of the apartheid era still dominates the current political and economical reality and shows how
the redistribution of water resources is contested by the elite. The paper identifies several issues that prevent the smallholder
farmers from claiming their rights, including the institutional arrangements in former homelands, the ‘community approach’ of
Government and NGOs, the disconnect between land and water reform processes, and historically-entrenched forms of behav-
iour of the various actors. The paper concludes that the difficulties encountered in the water reform process are illustrative for
what is happening in the society at large and raises the question as to what price is being paid to maintain the current status quo
in the division of wealth?

Keywords: natural resources, water reform, water rights, smallholder farmers, legal pluralism, South Africa

Introduction
Water use and management practices are a result of ongoing
processes of negotiation and bargaining between different water
users. The forum in which the negotiations over water take place
is often characterised by legal pluralism, in which different nor-
mative orders coexist and interact (Von Benda-Beckmann, 1997;
Bentzon et al., 1998; Boelens et al., 2005). Not all normative
orders have the same coercive means; nor do all enjoy the same
degree of legitimacy (Von Benda-Beckmann, 1997; Spiertz,
2000; Von Benda-Beckmann, 2002). At any location and in any
point in time existing repertoires of water law and actual water
use are therefore expressions of social-political and economic
power relationships between people. Hence, proposed changes
in water laws through water reform processes will often entail
shifts in the socio-economic relationships which will benefit cer-
tain groups in society over others. Reform processes will there-
fore most likely be contested by some groups in society while
other groups struggle to achieve the reformation (Mollinga,
2008; Mosse, 2008; Swatuk, 2008).
The impact of these power dynamics in society on the
implementation of the water reform process becomes apparent
in South Africa. The country has been haunted for decades by
racial segregation under the so-called apartheid regime. The
National Water Act (1998) formulated during the transition to the
post-apartheid era is widely recognised in policy circles as one of
the most comprehensive water laws in the world (Merrey, 2008).
The Act defines the state as the custodian of the nation’s water
resources and only water required to meet basic human needs
and maintain environmental sustainability is guaranteed as a
* To whom all correspondence should be addressed.
 + 31 15 2152 371; fax: +31 (0)15 212 2921;
e-mail: j.kemerink@unesco-ihe.org
Received 25 March 2010; accepted in revised form 5 September 2011.
right (RSA, 1998a). This fundamentally moves away from the
previous water acts which were largely based on riparian water
rights. The new Water Act gives the state a strong tool to redress
race and gender inequities inherited from the past (Van Koppen
and Jha, 2005). However, the National Water Act is implemented
and enforced in a society thick with historically-entrenched
socio-economic and political inequities. Hence, a decade after
the introduction of the National Water Act access to water is still
highly stratified along racial lines (Bond, 2006; Merrey, 2008;
Cullis and Van Koppen, 2009). Recognition and understanding
of the challenges met in the reform process could shed light on
the forces at play in the resistance to redistribute the water. These
insights can potentially contribute to better comprehending the
struggles in the society at large.
This paper contributes to the ongoing discussion on the
implementation of the South African National Water Act by
presenting empirical evidence and analysing how the Water Act’s
goal to redress inequity is implemented and contested. This is
done by illustrating the challenges faced by smallholder farmers
in their struggle to increase access to (productive) water sources
and their interactions with the commercial farmers in the area.
The catchment used as a case study for this paper is located
in the Thukela River basin in the south-eastern part of South
Africa. The actual name and location of the catchment will not
be revealed due to ongoing political sensitivities between various
actors in the case-study area. (References used in this paper that
directly refer to the case-study area will be indicated with ‘undis-
closed reference’. For verification purposes the references can be
requested from the authors.) The findings presented are based
on in-depth semi-structured interviews with 20 smallholder and
commercial farmers within the catchment, carried out between
June and August 2008. The interviewed smallholder farmers
were selected by a stratified random selection procedure to guar-
antee geographical spread, to create a balance of age and gender,
and to include less-advantaged farmers (see Box 1). The find-
ings of the interviews were cross-checked through focus group

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Box 1:
Description of sample
The 18 selected smallholder farmers for the in-depth interviews permanently
reside in the catchment in contrast to other residents who regularly commute to
urban areas for longer periods of time. They are members of households located
in different parts of the community and include members of large extended
families residing in the area as well as farmers with few relatives living in the
catchment. They have different political affiliations, sources and levels of incomes
and educational backgrounds. All respondents are involved in agricultural
activities and most own cattle. Out of the 18 smallholder farmers interviewed,
8 were women, of which 50% were older than 50 years and 50% were born in
the community. Of the interviewed men, 70% were older than 50 years and 70%
were born in the community.
The commercial farmers interviewed own the farms located directly
downstream of the smallholder farmer community, including the commercial
farmer whose property is (partly) located within the catchment. They are both
male, born in South Africa from British descendents and under 50 years old. The
commercial farmers live with their families on the farm.
discussions, observations, comparison with existing literature
and by consultation of informants such as local authorities and
non-governmental organisations (NGOs) active in the region.
This paper first describes the theoretical framework used to
analyse 4 ways in which water laws can be contested. In the next
section a detailed narrative of the catchment is provided as well
as the historical and institutional context in which the case study
is situated. Thereafter the interactions between the actors in the
catchment and the way in which they exert their water rights are
analysed based on the theoretical framework. In the conclud-
ing section the impact of the contested Water Act on the access
to (productive) water is discussed and the authors reflect on the
consequences of the current situation for the society at large.
Theoretical framework: contested water rights
The main theoretical framework adopted in this paper is the
concept of legal pluralism, which refers to the coexistence of and
interaction between various normative orders in a society that
govern people’s lives (Von Benda-Beckmann, 1997; Boelens et
al., 2005). The normative orders originate from different sources,
such as political ideologies, economic doctrines, religions and
projects. Legal pluralism recognises the dynamic, hybrid and
ambivalent forms of laws that result from interaction between
these normative orders within society, and allows for a greater
understanding of the actual social meaning of rights in a specific
social context (Boelens et al., 2005).
Water sector reforms often aim at changing socio-economic rela-
tionships between water users and most likely the proposed new
laws and rights will therefore be challenged by various actors in
a society. Zwarteveen et al. (2005) propose 4 categories in which
water laws and rights can be contested taking into account a
plural legal perspective, namely:
• The access to and control over water resources
• The content and interpretation of water law determining the
water distribution
• The participation in decision making on water management
• The discourses underlying the water law and implementation
policies
This section outlines the 4 categories as interpreted by the
authors. The first category refers to how physical access to, and
control over, the finite water resource is negotiated and obtained
586
in plural legal societies and on which basis. In negotiating
access, water users actively utilise the various normative orders
to legitimise their claims to water depending on which norma-
tive order serves their interests best, i.e. so-called forum shop-
ping (Bentzon et al., 1998; Meinzen-Dick and Pradhan, 2005).
However, not all normative orders have the same coercive means,
nor do all enjoy the same degree of legitimacy (Von Benda-
Beckmann, 1997; Spiertz, 2000; Von Benda-Beckmann, 2002).
Actors with vested socio-political and economic powers can
exert their stronger leverage position to influence which norma-
tive orders will prevail in the negotiations over water. Often the
leverage position is closely linked to property ownership, such as
infrastructure and land, as rights may become concretised rights
over time, for instance, when rights become fixed in permanent
concrete structures such as weirs, dams and field layouts (Mosse,
2008). However, powerful actors do not operate in isolation
and the actual access to water resources is therefore an ongo-
ing struggle between actors reflecting these social-political and
economic interdependencies.
The second category is related to the conflicts and disagree-
ments on the content of norms and laws and how they (should)
determine rules and regulations on access to water. This cat-
egory refers to the interpretation of water laws and the social
meaning of water rights in society. It reflects the socio-economic
power relations between the various actors and does not simply
follow technical imperatives such as efficiency, but also reflects
the historical and cultural values and ideas upheld in society.
How water rights are understood and translated to rules for water
use is coloured by the locally-accepted ways and traditions of
dealing with water (Zwarteveen et al., 2005; Mosse, 2008).
The third category deals with the struggles over participa-
tion in decision making over water law and rights. Decision
making spaces are often exclusive in the sense that some people
are allowed to enter and participate in them and others not.
Exclusion may be direct, based on class, gender or ethnicity.
However, often exclusion is less direct and hidden in mem-
bership criteria, location of the meetings or language used.
Moreover, being included in participation processes does not
guarantee one’s voice is heard as participation in decision mak-
ing is determined by social relationships of power and depend-
ency (Cleaver, 1999; Cornwall, 2003). Cultural norms associate
certain forms of behaviour with knowledge and authority and
others with ignorance, and in this way prescribe certain forms
of behaviour to different social groups of people (Bentzon et al.,
1998; Zwarteveen et al., 2005). This directly influences the self-
perceived capacity to participate in decision making and may
even lead to self-exclusion (Wilson, 1999).
The last category in which water law and rights can be
contested lies in the discourses used to articulate water problems
and solutions. The way in which water problems and solutions
are defined and conceptualised in a society is closely linked to
the political agenda they promote (Molle, 2008; Mosse, 2008).
Any understanding of water problems is based on representa-
tions and always implies a set of assumptions and (implicit)
social and political choices. Knowledge produced on water is not
merely neutral or scientific; it does not emerge by chance but,
rather, is the emanation of complex webs of interests, ideologies
and power as an inherent part of the water sector (Molle, 2008).
Hence, the dynamics of water politics, including water law and
rights, cannot be understood without also scrutinising the power
relations, discourses and discursive practices that guide percep-
tions of water problems and proposed solutions. In an ever more
globally-connected world order, this category includes analys-
ing global political forces and global networks that influence
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the national policies on water (Conca, 2006; Mollinga, 2008;
Swatuk, 2008).
Historical and institutional context of the
catchment
The case-study catchment is located in the Thukela River basin,
in the foothills of the Drakenberg Mountains, located within the
KwaZulu-Natal Province. The upstream part of the catchment is
part of a former Zulu homeland and is inhabited by smallholder
farmers. At the downstream end of the catchment commercial
farms are located. This section describes the historical and
institutional context of the catchment as well as the physical and
socio-economic conditions in the case-study area.
The Zulu tribe originates from Bantu communities and
settled in the area in the 16th century. A crucial turning point
in Zulu history occurred during the reign of Shaka (1816-1828).
Prior to his rule, the Zulus consisted of numerous clans that were
related but disorganised. During Shaka’s reign conquered tribes
were incorporated into the Zulu kingdom (Omer-Cooper, 1994).
In 1653, the south-western part of South Africa was colonised by
the Dutch and around 1825 the British settlers arrived on the east
coast (Omer-Cooper, 1994; Wilson and Thompson, 1969). The
Zulus fought several wars against the British, but surrendered in
1906. From then on the tribe was subjected, by European settlers
and their descendents, to an increasingly harsh series of racist
laws and practices that led to the disempowerment and subordi-
nation of the Zulus and other Black African tribes and which dis-
possessed them of access to natural resources (Mamdani, 1996).
Apartheid was a system of legalised racial segregation
enforced by the White-dominated Government of South Africa
between 1948 and 1994. Under apartheid, a series of measures
were introduced as part of the policy of so-called ‘separate devel-
opment’ that intended to create a South African society in which
the White population would become the demographic majority.
The creation of homelands was a central element of this strategy.
Comprising no more than 14% of the country’s area, 10 arbitrary
and often highly fragmented administrative territories were cre-
ated in 1951 (Pickles and Weiner, 1991). These homelands were
supposedly the original areas of settlement of what the state had
identified as the country’s main African ethnic groups and the
Black population were made citizens of these homelands, deny-
ing them South African citizenship and voting rights (Mamdani,
1996). Within the homelands the Black Africans could aspire
to self-rule under a chieftaincy (Ross, 1999). This subjected the
inhabitants to the chiefs and made them lose access to ancestral
land. Local tribal leaders were appointed by the Government
to run the homelands, and uncooperative chiefs were forcibly
deposed. By incorporating the traditional governance structure
and paying salaries and other benefits to the traditional chiefs,
the apartheid regime kept influence over the semi-autonomous
homelands and could control resistance (Mamdani, 1996). Over
time, a ruling Black elite emerged with a personal and financial
interest in the preservation of the homelands. On advice of the
apartheid Government large-scale reorganisation of the land use
in the homelands was introduced under the Betterment Schemes.
The reorganisation included dividing the land into distinct
land-use zones, e.g., residential, arable and grazing areas. People
living in the homelands were forced to move into demarcated
residential zones and dispossessed of arable and grazing land.
Only small plots were given to households to ensure the most
basic crop production. The expressed goal of the Betterment
Schemes was to ‘rehabilitate’ the land from the perils of over-
grazing and ‘inefficient’ African land use, but, in reality, the
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Betterment Schemes facilitated increasing the population densi-
ties in the homelands (McCusker and Ramudzuli, 2007). The
homelands became economically weak as the high population
densities often far exceeded the carrying capacity of the land
(Pickles and Weiner 1991; Ross, 1999). The education system
was designed to prepare the Black population for manual labour
and, with few local employment opportunities being available in
the homelands, most men commuted to work on the commercial
farms and in the mines of White South Africa (Bond, 2006).
Women often stayed behind and were relegated to reproducing
the future labour force and taking care of the sick and elderly
(Penzhorn, 2005; Omer-Cooper, 1994). The apartheid politics
sparked significant internal resistance. A series of uprisings and
protests led to an armed resistance struggle against the White
Government. Bloody armed clashes also occurred between
opposing Black political parties, especially between the African
National Congress (ANC) and the Zulu-dominated Inkatha
Freedom Party (IFP). This violence, believed to be supported by
the security forces of the apartheid Government, escalated at the
end of apartheid. Today the tension between political parties still
exists. Political apartheid was finally dismantled under internal
and international pressure in a series of negotiations on the revi-
sion of the constitution from 1990 to 1993 (Omer-Cooper, 1994).
The negotiation culminated in democratic general elections of
1994, which gave a landslide victory to the ANC.
Reconciliation of the society was the major concern of the
new Government and it took on the transformation of the dis-
criminatory legal systems. The Constitution was rewritten, as
well as most laws, such as the National Water Act. As part of the
institutional reform the Government structures were redefined
and the homelands were dismantled, reincorporating their terri-
tory into the Republic. The national, provincial and local govern-
ment levels all have legislative and executive authority in their
own spheres and are defined in the South African Constitution
as distinctive, interdependent and interrelated. The Constitution
also acknowledges traditional governance structures and states
that the country should be run on a system of cooperative gov-
ernance (RSA, 1994). Prime advisory bodies of traditional lead-
ers exist at all government levels and in the former homelands
the traditional structures still play a formal executive role in
addition to the local government structure (Lehman, 2007).
The case-study catchment (Fig. 1) occupies a total area of
approx. 10 km2 of hilly terrain with generally acidic soil. The
mean annual rainfall is estimated to be 700 mm/yr and the esti-
mated potential evaporation is between 1 600 and 2 000 mm/yr,
at an elevation of about 1 250 m above sea level. A good drain-
age network has developed in the catchment with most of the
streams being perennial. Extreme low flows occur in winter time
between June and August (undisclosed reference).
The former Zulu homeland located in the upstream part of
the catchment is mainly inhabited by smallholder farmers. The
population in this part of the catchment fluctuates consider-
ably as many commute to urban areas; however, it is estimated
that around 500 people reside in the area on a permanent basis.
Herding cattle and practicing agriculture are the main activities
in the area. Box 2 provides details on the water sources used
by the smallholder farmers. Cattle are kept for cultural reasons,
although for a few farmers they also serve for commercial
purposes. The cattle graze in summer time on communal land in
the upper part of the catchment. Overgrazing has led to extensive
soil erosion which has negatively influenced the natural water
retention in the catchment (undisclosed reference). The agricul-
tural plots are relatively small (0.5 to 2 ha) and the main crops
grown are maize and beans for subsistence, although parts of the
587
 owned the farm since 2002. The property includes 4 surface
N
dams allowing the farmer to grow irrigated crops in both sum-
mer and winter seasons (see Fig. 2). The farmer has registered his
historical water use under the new water law, which means his
water use is recognised as an existing lawful use (RSA, 1998a).
Between the smallholder farmers and commercial farmer
Communal various direct links and interdependencies exist. The perennial
grazing land
streams in the former homeland replenish 3 of the 4 reservoirs of
Smallholder farms Commercial farm the commercial farmer downstream. However, the water carries
considerable sediment loads caused by erosion in the upper part
of the catchment. The sediments are trapped in the dams of the
commercial farmer reducing their storage capacity. During the
winter months the cattle of the smallholder farmers roam the
fallow fields and often trespass into the commercial farm. The
cattle damage the crops of the commercial farmer and regular
Legend:
conflicts arise on this matter. In addition, interdependencies are
Catchment boundary Reservoir
created by the employment relationship: the commercial farmer
Property boundaries Road
employs approx. 30 permanent workers and up to 150 temporary
River Scale
1 km
workers during the harvest season. Most workers on the com-
mercial farm are residents of the case-study area while some
Figure 1 others come from the surrounding areas.
Sketch of the catchment The smallholder and commercial farmers residing in the
catchment fall under the formal authority of the local municipal-
harvest are regularly sold. Supported by NGOs, an increasing ity and are represented by an elected councillor at ward level in
number of smallholder farmers are growing vegetables in home the municipal council. The composition of the municipal council
gardens. The agricultural activities are not the main sources is based on a mixed system of proportional representation and
of income in the catchment as 37% of the households earn a the constituency election system. The IFP is the ruling party in
regular income, 45% of the households have access to remit- the municipality in which the catchment is located, while the
tance from family members working elsewhere, and 82% of the ANC has the majority at provincial and national level. Amongst
households receive social grants from the Government (undis- others, the municipality has the responsibility to ensure the pro-
closed reference), such as child support, old-age pension and vision of services (including water supply) to communities in a
disability grants (also available for HIV/Aids patients). The child sustainable manner and to promote social and economic develop-
support grant is ZAR 210 per child per month, while the latter ment (RSA, 1998b). In the former homeland, the traditional gov-
two amount to ZAR 940 per month (SASSA, 2008). In addition, ernance structure is still operational and the local chief controls
some smallholder farmers generate considerable income from access to land resources as custodian of the state-owned land.
illegally growing marijuana. The land tenure reforms aiming at granting private ownership
A commercial farm is located at the downstream end of the of land to the people living in the former homelands is highly
catchment with a total area of 1 560 ha. The commercial farm contested by the traditional authorities (Lyne and Darroch,
was established about 100 years ago and has been owned by 3 2004). The traditional Zulu governance structure used to have
different families, all of British descent. The current farmer has committees of elderly men at village level and headmen at a

Box 2:
Water sources used by smallholder
farmers in the catchment

The smallholder farmers mainly use communal boreholes

for domestic purposes. The boreholes are freely used and,
even though few rules on water use exist, they are not
adhered to. Not all boreholes work properly and some
households are located more than 1 km from the boreholes.
During the winter the farmers suffer from water shortages,
sometimes even for domestic use when boreholes run dry.
The cattle mainly drink from creeks and natural springs and
some farmers have built small earthen dams on their plots
to water their cattle. For agricultural activities the small-
holder farmers primarily rely on rainfall. However, some
home gardens are irrigated with water from the boreholes
or springs. With support from NGOs, a few farmers have
installed rainwater harvesting tanks, which collect runoff
from the compounds and enable them to grow (supple-
Figure 2
mentary) irrigated crops. Photograph of the catchment, showing the houses and fields of the smallholder
farmers in the forefront, and 2 reservoirs and irrigated lands of the commercial
farm downstream (July, 2008)

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higher spatial level as intermediaries under the chief. However,
to make the traditional governance structure more compatible
with the local municipality structure, the committees at village
level in the case-study catchment have been replaced in 2003 by
elected leaders at ward level and elected councillors have been
introduced in the council of the chief (RSA, 2003).
Contested water rights in the catchment
Although the National Water Act (1998a) directly aims at
redressing the injustice of the past, inequities in access to water
still exist in the catchment: so far the commercial farmer has
kept his entitlements to the water and the water allocations to the
smallholder farmers have not increased. This chapter presents
the empirical data from the case-study catchment and analyses
the interactions between the various actors and the way in which
they exert their water rights, following the framework presented
in second section of this paper.
Category 1 – Access to and control over water
The current South African society is characterised by multiple
legal realities. During apartheid, 2 different formal legal sys-
tems coexisted, the legal system in the White Republic and the
legal system in the homelands. The legal system in the Republic
focused on limiting power of the state and guaranteeing rights to
its citizens, while the legal system in the homelands focused on
strengthening the influence of the authorities to enforce customs
upon its residents (Mamdani, 1996). After apartheid this was
replaced by a new legal system; however, in contemporary South
Africa the 2 legal systems of the apartheid era continue to exert
their influence. In addition, as in every society, various norma-
tive orders, such as political ideologies, cultures and religions,
coexist and influence in complex ways the context in which
the negotiations over access to water take place. The Water Act
is contested by various actors in society which are interlinked
through social relationships and interdependencies. In the con-
temporary capitalist South African society the coercive means
of the vested economic powers are strong (Bond, 2006; Swatuk,
2008). Large-scale water users such as commercial farmers,
mining industries and electricity companies continue to receive
water on economic grounds (Steyl et al., 2000). Research con-
ducted in the northern parts of South Africa shows that wealthier
people are better able to capture the available resources (Hope et
al., 2004; cf. Mosse, 2008; cf. Sjaastad and Cousins, 2008). As
a result, the highly stratified division of economic power along
racial lines, and the status-quo of access to water resources in the
study catchment is maintained.
The plural legal conditions in which access to resources
has to be negotiated in former homelands is characterised by
a more complex reality than in other parts of the country, as
a result of the formal coexistence of the municipality and the
traditional governance structure at local level. This coexistence
determines that the municipality is responsible for water sup-
ply and the socio-economic development of the village (RSA,
1998b), while land tenure falls under the authority of the chief
in study area. Close collaboration between the 2 institutions is
required to ensure access to land with adequate opportunities to
exploit water resources and sufficient tenure security to invest
in hydraulic infrastructure. However, according to the inter-
viewed farmers, in the case-study area the institutions compete
to increase their authority within the catchment. Only 3 of the
18 interviewed smallholder farmers expressed trust in the local
municipality whereas the other farmers regard it as being corrupt
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and dominated by struggles between the political parties. Almost
all interviewed farmers are dissatisfied with the service delivery
of the municipality. Ten interviewed smallholder farmers indi-
cated that, as in the apartheid era, chiefs play an active role in
politics. According to the smallholder farmers, chiefs are loyal
to political parties in return for continuing support to legitimise
their authority and other favours. In a young democracy with a
large illiterate rural population voters can easily be manipulated
and the chieftaincy fosters strongholds for the political parties.
Four smallholder farmers indicated that the level of municipal
service delivery to their community is low because the ruling
chief belongs to the opposition party (ANC). They argue that,
therefore, most smallholder farmers in the former homeland
voted for the same opposition party; however, the elected coun-
cillor of the ward is from the ruling party (IFP).
The authority of the chief has lost legitimacy among the
rural population as chiefs were seen as puppets of the White
Government during apartheid (Mamdani, 1996). However,
the current party politics and the state-introduced changes in
traditional governance structure have also reduced the execu-
tive power of the traditional authority in the case-study area.
According to 8 interviewed farmers, as a result of the imposed
changes (e.g. the abandoning of the committee of elders) no
institution has sufficient authority to spearhead joint initiatives at
village level. For example, plans for jointly building small reser-
voirs for watering livestock and for irrigation have not material-
ised because of disputes over the location of the dams. Although
access to land is controlled by the chief, the traditional structure
does not have sufficient authority to make land available to the
benefit of the community as a whole, and unused land is hardly
available in the area as population density is high. The local
politics leave the smallholder farmers in the catchment divided
along party lines. The smallholder farmers indicated that village
meetings are occasionally organised, but are mainly limited to
conflict mitigation and providing top-down information, and
are not used to discuss opportunities for progress or planning
of joint initiatives. Although more than half of the smallholder
farmers carry out joint activities, such as growing beans for sale
and weaving mats, participation is limited to family members or
political allies and these activities are often externally supported
by NGOs.
Besides differences in political affiliations the composition
of the community is also heterogeneous in terms of agricultural
ambitions. Most smallholder farmers keep cattle for cultural
purposes; however, only 6 farmers have the ambition to advance
their crop-growing activities for commercial purposes. It should
be noted that during apartheid considerable segments of the
Black population had been de-urbanised during the forced
relocation to the homelands (Mamdani, 1996). This could
explain why agricultural ambition is relatively low in the former
homeland. The heterogeneity of the community and associated
difference in priorities gives the people who would like to farm
a disadvantaged starting point in accessing municipal services
which are often offered on a communal basis. It also negatively
influences the negotiations over the redistribution of land and
water with the downstream commercial farmer. Without a clear
mandate to negotiate on behalf of the community the villagers
are faced by a far more powerful opponent in the commercial
farmers. The commercial farmer located at the downstream
part of the catchment indicated that several smallholder farm-
ers contacted him to discuss redistribution of natural resources:
they requested access to part of his (fallow) land, receiving wood
and support with constructing a dam upstream of his reservoirs.
Instead, the commercial farmer has interest to jointly develop
589
new water resources. However, according to him there is no
established authority among the smallholder farmers with whom
to thoroughly discuss the issue, and, in his opinion, the com-
munity is highly disorganised. In the absence of local govern-
ment and/or the traditional authority to facilitate the negotiation
process it leaves the smallholder farmers with virtually no
opportunity to improve their access to the natural resources.
Although, most likely, the legal plurality in the former home-
lands creates an enabling environment for certain groups to exert
their claims, it also creates institutional chaos which prevents
some smallholder farmers in the catchment from addressing the
unequal access to natural resources and pursuing their agricul-
tural ambitions.
Category 2 – Content and interpretation of water
rights
The content of the National Water Act and how it should be
interpreted is debated at various points. For example, the Act
defines that water required to meet basic human needs is guar-
anteed as a right and all other water uses by humans are divided
into priority categories (RSA, 1998a). The policy to implement
this particular part of the Act identifies water for basic human
needs only as water for domestic use and limits it to 25 litres per
person per day. However, many smallholder farmers depend to a
large extent on their own food production for their subsistence,
and it can therefore be debated if and how water for subsistence
farming should be included in the basic human needs (Hope et
al., 2008). The guaranteed right of water used for environmental
sustainability is also questioned (Swatuk, 2008) and is some-
times seen as a hobbyhorse of the White elite. Some smallholder
farmers in the Olifants River Basin responded to water allocated
to the environment with: ‘As if they (read Whites) find fish more
important than our lives’ (Van Koppen and Jha, 2005: 209).
The Act also clearly indicates that the Government can
reallocate water to redress the inequities in the society, but the
reallocation is only legitimate if it is in the wider public inter-
est (RSA, 1998a). However, it can be debated what the wider
public interest is. Currently the Government recognises a need
to ‘balance’ equity with productivity and profitability and is
cautious about large-scale reallocations (Merrey, 2008). This
approach is supported by the commercial farmer in the catch-
ment, whose position is that he invests his own capital and takes
financial risks to produce food to feed the rural population. He
argues that if the land and water resources are given to the less-
experienced Black population, the agricultural production will
significantly drop, which will negatively influence the national
economy and is therefore not in the public interest. With the
economic meltdown in neighbouring Zimbabwe, which, accord-
ing to some politically-motivated voices is directly linked to
the forced take-over of White-owned farms, most smallholder
farmers in the catchment tend to agree with him; 14 interviewed
smallholder farmers acknowledge the role of the commercial
farmers in the national economy and stress the need for a good
relationship with the commercial farmers, regardless of the divi-
sion of natural resources (cf. Van der Zaag and Röling, 1996).
The domination of fear in the debate through the comparison
with Zimbabwe is a powerful tool in the hands of the commercial
farmers to influence the societal meaning of ‘the wider public
interest’, and in this way to maintain the status quo. However, 3
interviewed smallholder farmers explicitly indicated that a more
fair distribution of natural resources is a prerequisite to improve
the relationship with the commercial farmer downstream in
the catchment. In addition, according to several smallholder
590
farmers, the youth might not accept the current distribution of
resources and threats to the commercial farmers are reported.
An elderly female smallholder farmer (71 years) indicated that,
in the absence of intimidating memories of the apartheid era and
openly supported by some political movements, ‘the youth might
challenge the uneven relationship with the commercial farmers
in the near future and might call for the Zimbabwean approach’.
Category 3 – Participation in decision making
The new legal system in South Africa makes a major shift in
participation in decision-making processes in comparison to
the apartheid era in which Black South Africans were excluded.
Even though the formulation of the Water Act incorporated
public views, and public participation during the implementa-
tion phase is stipulated, the decision-making spaces are still
dominated by Whites and some Black elites (De Lange, 2004).
Technical expertise and knowledge of water resource manage-
ment is still White-dominated and the Government agencies
have suffered greatly from ‘brain drain’ to private consultants
as a result of the Black Economic Empowerment Act which
focuses on achieving equity in (Government) employment (RSA,
2004). Nowadays the Government is highly dependent on hiring
consultants to implement the Water Act and to facilitate public
participation, while these consultants do not necessarily serve
the interests of the Government nor are they necessarily familiar
with the needs and desires of the Black community (Merrey,
2008). With 11 official languages in South Africa, language
also plays a role in public participation, as most meeting are
held in English and only partly translated in other languages
(Van Koppen and Jha, 2005). High illiteracy rates in rural South
Africa seriously hamper the involvement of rural communities
(Simpungwe, 2006).
For public participation to be effective in decision making,
liaison with interest groups is essential. Within the participa-
tion process the rural communities are often categorised as one
single interest group, for instance, for their representation in the
water user associations that will be established under the Water
Act (authors’ unpublished data). The smallholder farmers in
the catchment are faced with the challenge that they are often
expected to act on a communal basis in participation processes
while they are strongly divided amongst themselves. Underlying
causes of the difficulties for the community to act collectively
are the weak family ties as a result of the resettlement policies
and the condemnation of every form of self-organisation during
apartheid. Moreover, the perception of dependency on external
support (e.g. Government and NGOs) for development is strong,
as 14 smallholder farmers indicated that external institutions
have to take care of their (basic) needs. The (limited) monetary
resources available in the community are barely invested in
productive activities and confidence in their own entrepreneurial
skills is low. When asked what they do for a living more than
half of the smallholder farmers indicated that they do not have
an occupation (any longer) and rely on social grants from the
Government. Only 4 out of 18 smallholder farmers acknowledge
their own agricultural activities, even among the smallholder
farmers who regularly sell their surplus. Potentially the depend-
ency created during apartheid undermines the self-reliance of the
smallholder farmers and limits their self-esteem to participate in
decision making on water resources.
The scars from the past still dominate the relationship with
the downstream commercial farmer. Although various inter-
dependencies exist between the smallholder farmers and the
commercial farmer and both parties would benefit from a good
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relationship, the smallholder farmers feel inferior and believe
they depend more on him than the other way around. Although
the commercial farmer realises that he is the minority in the area
and his farm could be occupied overnight, he also believes the
smallholder farmers will not take the risk to illegally challenge
the current situation as he employs a considerable number of
community members on his farm. For water, the commercial
farmer is dependent on the smallholder farmers as most of the
water in his reservoirs originate from their area; nevertheless he
indicated that his current water entitlement gives him sufficient
confidence that he will continue to receive water in the future.
For reallocation of water under the Water Act downstream law-
ful uses have to be considered and compensated if negatively
affected, unless it can be proven that the reallocation is to ‘rec-
tify an unfair or disproportionate water use’ (RSA, 1998a: 22-7).
Nevertheless the commercial farmer trusts that he has a strong
case to oppose potential redistribution of water in the catchment,
which worries the smallholder farmers who are less familiar with
the content of the Water Act. The understanding of each other’s
realities and respect for cultural values is limited. The small-
holder farmers indicated that they have invited the commercial
farmer, in vain, to several official ceremonies in the community
to strengthen the bond between them. The commercial farmer
indicated that he does not have time to attend the time-consum-
ing ceremonies and prefers to limit their interaction to purely
business matters. The local government is absent in bringing the
parties together to facilitate the reconciliation process and foster
collaboration. Currently, communication between the parties
is restricted to conflict mitigation over cattle trespassing. Five
smallholder farmers indicated that, out of frustration over the
current situation, people living in the case-study area sabotage
the activities of the commercial farmer, e.g., deliberate trespass-
ing of cattle on the commercial farm, stealing of crops, and
destroying equipment. Although it affects his business, the com-
mercial farmer indicated that he does not act on this impairment
but tolerates it to avoid it becoming worse. Both parties pointed
out that potential collaboration on the development of alterna-
tive water resources is seriously affected by the current negative
relationship.
The Water Act is explicit in its aim to redress the inequities
based on gender (RSA, 1998a) and mainly refers to providing
domestic and productive water to poor women in the rural areas.
However, some cultural values obstruct participation of women
in decision making. The Zulu culture is patrilineal in which the
customary heritage of property and power positions is through
the male lineage, from father to son (Mair, 1969). In the Zulu
culture women have limited political status, and resources such
as land and livestock are mainly owned by men. Although water
resources are mainly used by women for domestic purposes,
and growing crops is regarded a female activity, women are not
involved in the maintenance and future planning of the water
resources and have a low political status (Penzhorn, 2005). Three
female smallholder farmers indicated that they would like to be
involved in decision making at village level, but, for community
meetings, often only men are invited. The few women who do
attend the meetings on their own initiative indicated that they
have difficulties in speaking up and being heard. In particular
the presence of male relatives of their husbands restricts them
from raising their voices. Half of the interviewed women in the
catchment are not aware of the institutional structures in their
community and indicated that men do not inform them about
governance issues. Two male farmers responded that the village
meetings focus primarily on issues related to cattle which they
regard as a male business. Joint initiatives of women to increase
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their influence in the community do not take place, according
to the interviewed female farmers, because the women in the
community are not united. Some NGO-supported agricultural
groups include women (undisclosed reference); nevertheless, the
decision-making spaces remain strongly male-dominated.
Category 4 – Discourses underlying water law and
implementation policies
The National Water Act (RSA, 1998a) was politically driven by
the need to redress the inequities in society and to create equal
opportunities for all citizens. However, this socialist-oriented
political ideology of the new Government was not compat-
ible with the capitalist principles on which the South African
economy was based (Bond, 2005; Hart, 2006). Maintaining a
strong economy through focus on market efficiency, competi-
tion and productivity was supported by the economic elite in
South Africa as well as by the geopolitical agenda (Hart, 2008).
Through conditional policy reforms attached to loans from the
World Bank and IMF the new Government was persuaded to
adopt a neo-liberal approach (Bond, 2005; Harvey, 2005). The
neo-liberal doctrine suggests that human well-being can best be
advanced by liberating individual entrepreneurial freedoms and
skills in an institutional framework characterised by free markets
and globalisation of trade (Harvey, 2005). It proposes limiting
the control of the Government on the economy, as well as the
privatisation of public services and property rights over natural
resources (Harvey, 2005; Ahlers and Zwarteveen, 2009). Based
on these neo-liberal principles the South African Government
introduced the Growth, Employment and Redistribution (GEAR)
policy in 1996, which focused on achieving equity by enlarging
the ‘wealth’ cake. However, in a country characterised by struc-
tural inequalities along racial lines in terms of educational back-
ground and access to resources, emphasis on market competition
between actors is unlikely to lead to equity. Moreover, shifting
power from the state to the market and focusing on productiv-
ity seriously hampers the redistribution of natural resources to
the previously-dispossessed groups in the society. According to
Bond (2005), neo-liberal policies have amplified rather than cor-
rected the economic distortions created during apartheid and it
is argued that the neo-liberal doctrine has replaced racial segre-
gation under apartheid with class segregation in contemporary
South Africa (Bond, 2006; Harvey, 2005; Swatuk, 2008).
The dominance of the neo-liberal discourse becomes visible
in the chosen approach for the implementation of the National
Water Act and the priorities set for the water allocations (Bond,
2006). For example, the choice of a sectoral approach to water
delivery might be suitable for the high-volume users in the
better-served areas, but in the rural areas water resources are
often used for multiple purposes and integrated service deliv-
ery would be more effective (Van Koppen and Jha, 2005). The
smallholder farmers in the catchment indicated that they have
to deal with different Government departments for their water
supply depending on the purpose of the water use (e.g. domes-
tic, various productive uses), while in practice the same water
resources are being used. Increasing access to the water resource
is therefore challenging, as it needs collaboration between the
various Government departments. Moreover, it remains unclear
in the Water Act under which category water use for small-scale
commercial production falls (Perret, 2001). Water abstraction for
subsistence farming is permitted under the Water Act without
registration or payment (RSA, 1998a), while for all other water
uses a licence needs to be granted. However, the smallholder
farmers in the case-study catchment often only sell part of their
591
harvest depending on the yields and market opportunities, which
makes the water use for commercial purposes difficult to pre-
dict, and is, hence, licensed. Furthermore, to obtain a licence the
Water Act stipulates that the water use should be in line with the
catchment management strategy negotiated within the new water
user platforms (RSA, 1998a). In the absence of organisational
structures around water in the former homelands, meaningful
representation in these new arenas will be problematic, which
leaves the emerging individual smallholder farmers formally
without rights to water for commercial uses and favours the
established well-organised large-scale commercial farmers in
the catchment. This is now acknowledged by the South African
Government and the proposed granting of a general authorisation
for small-scale commercial water use is currently debated. The
water allocations at national level also clearly demonstrate the
underlying neo-liberal discourse: even though the smallholder
farmers in the case-study area indicated that a shortage of water
limits their economic development, the Thukela River Basin
is transferring approximately 75% of its surface water yield to
adjacent river basins to support commercial activities of indus-
tries and hydro-power production in urban parts of the country
(DWAF, 2003). Consultants hired by the Government to study
the water availability and water use in the Thukela River Basin
recommended continuation of water transfers to other parts of
the country as, in their view, no strong economic drivers within
the basin exist to stimulate development. They regard water
resource development for the sole purpose of irrigation economi-
cally unviable and recommend allocating the water to other
sectors (DWAF, 2003).
Even more striking is the lack of an integrated approach
across sectors, which disconnects the water reform process from
the land reform process. In South Africa the inequity in land and
water resources is closely linked, with the smallholder farmers
mainly relying on green water resources (Rockström et al., 1999;
Savenije, 1999). Significant increases in access to water can
therefore not be achieved in the overpopulated former homelands
unless the inequity in land distribution is addressed simultane-
ously (Hope et al., 2004; 2008). Currently the distribution of
land under the land reform program,e is based on the neo-liberal
‘willing seller, willing buyer’ principle, in which land is bought
in conformity to market prices (DALA, 2006). However, this
approach results in a slow pace of the land reform process (Lyne
and Darroch, 2004; Lahiff and Cousins, 2005; Hart, 2006;
Cousins, 2007; Peters, 2009) and, according to the smallholder
farmers in the case-study catchment, only fragmented pieces of
communal land become available with often limited access to
(blue) water resources. For instance, through the land distribu-
tion programme the smallholder farmers have obtained approxi-
mately 600 ha of dry mountainous land adjacent to their com-
munity, and another piece of land that was offered to them was
more than 10 km away from their current location. Moreover, it
is slowly being acknowledged that, based on market prices, the
Government will never be able to afford to buy sufficient land to
radically address the existing inequity (DALA, 2006).
Finally, in the South African Constitution it is stated that
the country should be run on a system of cooperative govern-
ance between the Government and the traditional governance
structures (RSA, 1994). This principle is admirable from the
reconciliation perspective; however, besides the additional chal-
lenges it creates in the former homelands, as described above,
it is to a certain extent also a facade. With the Government
having the constitutional authority, the democracy discourse is
dominant and the role of the traditional authorities is limited to
an advisory role, despite the protests of the traditional leaders
592
(Lehman, 2007). In this way the cooperative governance system
reproduces the inherited inequalities between the Government
and the traditional authorities. The dominant democratic dis-
course becomes further apparent in the manipulation of the
traditional structure to comply with Government structures and
the requirements for democratically-elected representation in the
traditional governance structure (RSA, 2003), which has affected
the executive power of the traditional authorities. Nonetheless,
it can be debated as to who the traditional governance struc-
ture is representing, particularly after the manipulations by the
apartheid regime (Mamdani, 1996). In the traditional govern-
ance structure the Black elite might be represented, but it can be
questioned whether the rural poor are represented (Sjaastad and
Cousins, 2008). It can therefore be argued that the adoption of
a cooperative governance structure was a politically-motivated
choice to support the Black elite rather than a prerequisite for the
socio-economic development of the rural areas.
Discussion and conclusions
Although the National Water Act (RSA, 1998a) is comprehensive
in its legislation and provides powerful legal tools to address
poverty eradication and redress inequities inherited from the
past, in reality little transition in the access to and control over
water resources has been achieved (Bond, 2006; Cullis and
Van Koppen, 2009; Merrey, 2008). This paper emphasises that
water law on paper is not sufficient, as it is not implemented and
enforced in a vacuum, but in a society thick with historically-
entrenched socio-economic and political inequities. The transi-
tion from apartheid to post-apartheid South Africa has been
characterised by a negotiated transformation with emphasis on
reconciliation. As a consequence the legacy of apartheid and the
nature of the transitional arrangement still determine, to a large
extent, today’s political and economical reality, with the elite,
White and some Black, in charge. Neo-liberal geopolitics has
left the South African Government faced with the challenge to
redress access to natural resources in an era characterised by the
promotion of the private sector over the public sector (cf. Lahiff,
2003; cf. Hart, 2006; Swatuk, 2008). Hence, the Water Act is
highly contested by the vested economic elite and up to now the
status quo of an unfair distribution of water along racial lines is
maintained, leaving the smallholder farmers in the study catch-
ment managing in the margin.
The Water Act provides opportunities for citizens to con-
test unequal access to water resources through a bottom-up
approach. However, smallholder farmers in the case-study catch-
ment face various challenges that prevent them from claiming
their rights. These can be summarised in 4 points. First, the insti-
tutional chaos created in the former homeland as a result of the
formal plural governance structure directly influences the execu-
tive power and legitimacy of the various authorities, thwarts
collaboration, and creates ‘fuzziness’. Second, the tendency of
authorities and NGOs to approach the smallholder farmers as a
united community and offer services and resources on commu-
nal basis is problematic, as the farmers are divided and heteroge-
neous in their ambitions, which makes it difficult for individual
farmers to advance their agricultural activities. Besides, it can
be questioned if the residents in the former homeland should be
approached as farmers, as a substantial part of the residents do
not perceive themselves as such. This is in line with the state-
ment of Dlali (2008: 44) ‘most people currently living in the rural
areas in South Africa are ‘rural dwellers’ rather than farmers’.
Third, the disconnect between the water and land reform pro-
grams puts the smallholder farmers in the dilemma of acquiring
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land without (blue) water or water without land. Fourth, the
low self-esteem as a result of the structural, racial and gender
inequalities hinders the smallholder farmers from claiming their
rights and challenging the unequal access to water for (produc-
tive) uses. The smallholder farmers adopt an underdog position
and their attitude tends to be submissive, especially the female
smallholder farmers. As argued by Zwarteveen et al. (2005),
historically entrenched markers of behaviour that have served for
generations to delineate and express the differentiation based on
race and gender are not easily undone through legal changes.
The analytical framework used in this paper distinguishes
4 categories in which water law can be contested, based on
Zwarteveen et al. (2005). The framework has been useful to
comprehend the challenges met in the reform process, as it
systematically analyses how water law is contested even if no
explicit conflicts over or open claims on water exist. It reveals
the different manifestations of struggles over access to water
resources and how they are linked to self-perceived capacity
of the actors to challenge or maintain the existing situation. In
this way, the framework exposes how the implementation of
the new water law is dynamically linked to deeper entrenched
power structures in society and details how actors actively use
and/or ‘misuse’ the water law to shape the negotiations over
water. However, the framework focuses on water law, which
only deals with water allocation and not with water distribu-
tion. Therefore, to increase the physical access of the small-
holder farmers to (productive) water, distributional issues, such
as the availability of hydraulic infrastructure and the capacity
to manage, maintain and operate the infrastructure, need to
be tackled simultaneously (Van der Zaag and Bolding, 2009).
Investment in hydraulic infrastructure is closely linked to land
availability and land tenure. Hence, this emphasises the impor-
tance of integrated and cross-sectoral approaches, as well as the
importance of reviewing the cooperative governance structure
in the former homelands. However, as argued before, water
systems are not only shaped by, but also themselves shape and
reinforce, social-political and economic relations, and historical
analysis shows that hydraulic infrastructure has been used by
wealthier farmers to assert their claims by ensuring that their
‘rights’ are fixed in permanent concrete structures (Mosse,
2008). Challenges associated with development of hydraulic
infrastructure should therefore not withhold the Government
from investing in hydraulic infrastructure in the previous dis-
advantaged former homelands.
In conclusion, the Water Act and other post-apartheid laws
raised expectations amongst the various groups in society and
gave hope for a more prosperous future, but after a decade of rec-
onciliation the division of wealth is hardly unchanged (Swatuk,
2008). The ongoing protests and eruptions of violence in South
Africa are resurgences of the underlying struggle over the struc-
tural inequities in society; the smallholder farmers in the case-
study area indicated that youth from their community had been
involved in mid-2008 in xenophobic attacks (Mail & Guardian,
2008), and they believe that the violence was an expression of the
frustration about the dire conditions in which people live com-
pared to the living conditions of the elite (cf. Hart, 2006; Swatuk,
2008; Peters, 2009). The difficulties encountered in the water
reform process are illustrative of what is happening in the society
at large. Although so far the elite have been able to maintain the
status quo in the division of wealth, it can be questioned how
robust the situation is, with the (potentially explosive) under-
currents in the society, and, hence, what price is being paid to
maintain this status-quo?
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Acknowledgements
The work presented in this paper was funded by DGIS and
UNESCO-IHE. Implementation on-site was assisted by the
School of Bioresources Engineering and Environmental
Hydrology and the Centre for Environment, Agriculture and
Development of the University of KwaZulu-Natal, South Africa.
We thank the respondents for sharing their knowledge and
opinions with us. Our gratitude goes to Ms. Hlengiwe Mabaso
for translation during the interviews, to Mr. Michael Malinga for
his assistance in the field and to Prof. Graham Jewitt for his valu-
able comments on earlier versions of this paper. The authors are
grateful for the constructive comments made by the anonymous
reviewers of Water SA.
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http://dx.doi.org/10.4314/wsa.v37i4.16
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ISSN 0378-4738 (Print) = Water SA Vol. 37 No. 4 October 2011
ISSN 1816-7950 (On-line) = Water SA Vol. 37 No. 4 October 2011